UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4078

WILLIAM HENRY COLEMAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Terrence W. Boyle, Chief District Judge.

(CR-96-10)

Submitted: February 26, 1999

Decided: March 18, 1999

Before HAMILTON and MOTZ, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Norman Butler, Charlotte, North Carolina, for Appellant. Mark T.

Calloway, United States Attorney, Brian Lee Whisler, Assistant

United States Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

William Henry Coleman appeals his conviction for a violation of

18 U.S.C. § 922(g) (1994). After Coleman was arrested on a state

warrant for murder, the grand jury returned a single count indictment

charging Coleman with possession of a Ruger 9 millimeter semiautomatic pistol and a prior conviction of a felony. Before trial, a

magistrate judge recommended that Coleman's motion to suppress the

firearm that officers found in his vehicle when they arrested him be

denied. The Government informed Coleman and the district court that

Coleman was eligible for sentencing as an armed career criminal

under the provisions of 18 U.S.C. § 924(e) (1994). In doing so, the

Government specified three predicate offenses it claimed qualified as

violent felonies or serious drug offenses. See 18 U.S.C. § 924(e)(2).

After the jury convicted Coleman, the district court determined that

Coleman was an armed career criminal as defined by the statute and

sentenced him to 210 months imprisonment. Coleman appeals his

conviction and sentence. In this appeal, Coleman claims that there

was error at virtually every stage of his indictment, trial, and sentencing. Finding no merit to any of his contentions, we affirm.

In attempting to attack his conviction, Coleman first challenges the

indictment returned against him by the grand jury. Coleman argues

that the Government and district court improperly amended the indictment. In doing so, Coleman correctly notes that the indictment specifically charged that he had previously been convicted of "Felonious

Possession with Intent to Distribute Cocaine." When the district court

discovered that Coleman had actually been convicted of felonious

possession of cocaine, the court amended the indictment to conform

to the evidence produced at trial. Generally speaking, an amendment

to an indictment which changes the offense charged is error per se and

must be corrected on appeal, even in the absence of an objection. See

United States v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (en banc).

However, an amendment may stand if it does not change the essential

or material elements of the charge so as to cause prejudice to the

defendant. See United States v. Schnabel, 939 F.2d 197, 203 (4th Cir.

1991).

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In this case, none of the elements of the charge were altered. The

only amendment Coleman complains of is a correction of the description of the predicate state felony. Rather than changing an element of

the offense, the amendment merely affected the evidence by which

the Government proved one of the elements. See Old Chief v. United

States, 519 U.S. 172, 186 (1997). Coleman does not suggest how this

technical amendment prejudiced him. The indictment noted the correct date of conviction and the correct jurisdiction despite incorrectly

naming the offense. Coleman does not allege that he would have been

able to show that he was not guilty of the predicate offense if it had

been more specifically identified in the original indictment. As a

result, there was no reversible error in the district court's amendment

of the indictment.

Coleman next contends that the district court erred in denying his

pre-trial motion to suppress both the pistol and his statements which

led to the discovery of the pistol. Coleman claims that his rights

against self-incrimination under the Fifth Amendment were violated

when the arresting officers asked him whether he had a gun in the car

he was driving. The officers questioned Coleman about the gun prior

to informing him of his rights as described in Miranda v. Arizona, 384

U.S. 436 (1966). The magistrate judge recommended that the district

court allow the pistol and statements under the public safety exception

to the mandate of Miranda. See New York v. Quarles, 467 U.S. 649,

657 (1984). Coleman argues that the exception should not have

applied in this circumstance because he was already secured in the

officers' vehicle. The district court accepted the recommendation of

the magistrate judge and admitted the evidence over Coleman's

objection.

It is well-settled that the public safety exception is grounded in law

enforcement officials' ability to "distinguish almost instinctively

between questions necessary to secure their own safety or the safety

of the public and questions designed solely to elicit testimonial evidence from a suspect." Id. at 658-59. In this case, the officers arrested

Coleman, a murder suspect with a history of violence, in a public

area. Within a few minutes, there were a number of spectators close

at hand. In addition, the arresting officers needed to move Coleman's

vehicle to a safer location and planned to have it impounded. The

officers' questions regarding the presence of a gun stemmed from

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their concern for safety and to neutralize a potentially dangerous situation. See United States v. Brady, 819 F.2d 884, 888 (9th Cir. 1987).

The district court did not err in accepting the report and recommendation of the magistrate judge and admitting the evidence under public

safety exception to the Miranda warning requirement.

Coleman next complains that during discovery, the Government

did not provide him with the grand jury testimony of one of the arresting officers who eventually testified at trial, Agent Martinez. Coleman contends that this omission constituted a Jencks Act violation.

The Jencks Act provides that the Government is only required to produce requested materials "[a]fter a witness called by the United States

has testified on direct examination." 18 U.S.C.§ 3500(b); see United

States v. White, 750 F.2d 726, 729 (8th Cir. 1984) ("Although in

many cases the government freely discloses Jencks Act material to the

defense in advance of trial, the government may not be required to do

so."). Furthermore, an order to produce the material should be made

"on motion of the defendant." 18 U.S.C. § 3500(b). Because there was

no such motion in this case, the Government was not required to produce the grand jury transcripts in question. Moreover, even if we were

to conclude that there was a violation, notwithstanding Coleman's

failure to make an appropriate motion, he has not shown that the error

was anything other than harmless. See United States v. Lewis, 35 F.3d

148, 152 (4th Cir. 1994).

Moving to his trial, Coleman next asserts that there was insufficient

evidence to convict him of a violation of 18 U.S.C.§ 922(g). Specifically, Coleman claims that the Government failed to prove that his

civil rights, among them his right to possess a firearm, had not been

restored. Relying on United States v. Essick, 935 F.2d 28, 31 (4th Cir.

1991), Coleman correctly notes that in some § 922(g) prosecutions in

North Carolina, the Government must demonstrate that the defendant

possessed a firearm within five years of release from supervision. See

id. In other words, in some circumstances, the Government must

show that it is entitled to the assumption of the continued vitality of

the prior conviction and that the conviction is not"so removed in

time" that North Carolina would have ordinarily restored a defendant's civil rights. See United States v. Thomas , 52 F.3d 82, 85 (4th

Cir. 1995). However, this court clarified that "the holding in Essick

is limited to circumstances where the underlying North Carolina fel-

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ony conviction occurred more than five years prior to defendant's

firearm possession." Id. In this case, Coleman was arrested for possession of a firearm approximately two years after his conviction for the

predicate offense. Under North Carolina law, Coleman's civil rights

could not ordinarily have been restored. Consequently, the Government did not bear "the burden of proving independently the addition

fact that [Coleman's] civil rights had not been restored." Id. Coleman's suggestion that the Government was required to do so is without merit.

Despite his failure to object to the jury instructions in any manner,

Coleman contends that the district court misdefined reasonable doubt.

Ordinarily, Coleman's failure to object would preclude his challenge

on appeal of an allegedly inappropriate jury instruction absent plain

error. See United States v. Rogers, 18 F.3d 265, 268 (4th Cir. 1994).

However, if the court charged the jury with a constitutionally deficient reasonable doubt instruction, it amounts to"structural error"

which is not subject to harmless error analysis. See Sullivan v.

Louisiana, 508 U.S. 275, 281-82 (1993). The proper inquiry in

reviewing this instruction is whether there is a reasonable likelihood

that the jury applied the reasonable doubt standard in an unconstitutional manner. See Victor v. Nebraska, 511 U.S. 1, 6 (1994). On

appeal, Coleman contends only that the district court "lessened" the

Government's burden of proof by overemphasizing its definition of

reasonable doubt and stating that the Government was not required to

prove Coleman guilty beyond all possible doubt. Because the district

court's instruction was virtually identical to the instruction we

recently approved in United States v. Williams , 152 F.3d 294, 297-98

(4th Cir. 1998), we find that there is no risk that the jury misapplied

the reasonable doubt standard.

Coleman also contends that the district court misled the jury into

believing that possession with intent to distribute cocaine remained

the predicate offense to the § 922(g) conviction even after the amendment of the indictment. Coleman suggests that the district court prejudiced his defense by convincing the jury that Coleman had been

convicted of possession with intent to distribute. There was no plain

error in the district court's oblique but mistaken reference to the

offense listed in the unamended indictment. See Rogers, 18 F.3d at

268. The court correctly instructed the jury that they must find

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whether Coleman had previously been convicted of a felony. See Old

Chief, 519 U.S. at 186. The district court did not specifically mention

offense that was incorrectly included in the indictment. As a result,

there was no reversible error in the jury instructions.

Coleman makes several assignments of error regarding his sentence. In attacking the district court's determination that he was subject to an enhanced sentence as an armed career criminal pursuant to

18 U.S.C. § 924(e), Coleman first complains that it was impermissible

for the Government to substitute an additional offense for an offense

specified on the notice he received informing him of the applicability

of the armed career criminal statute. The Government asked the district court to consider a store larceny conviction rather than a cocaine

possession conviction when it was discovered that the possession conviction did not qualify as a predicate offense under§ 924(e). Coleman

contends without support that § 924(e) notice from the Government

must refer to specific offenses and may not be altered without notice.

However, when a defendant's sentence is subject to enhancement

because he is an armed career criminal under the guidelines, due process does not require notice. See United States v. McDougherty, 920

F.2d 569, 575 (9th Cir. 1990).

Indeed, in United States v. Johnson, 973 F.2d 857, 860 (10th Cir.

1992), the Tenth Circuit, noting the compulsory"shall" used in

§ 924(e)(1), stated that if it comes to the court's attention that the

defendant meets the requirements of the subsection,"[t]he sentencing

court may invoke the enhancement sua sponte without a request by

the government." Id. Other courts have more specifically addressed

the notice issue as it pertains to specific prior convictions. See, e.g.,

United States v. Mauldin, 109 F.3d 1159, 1162-63 (6th Cir. 1997)

("[Defendant] contends that the government should be bound by its

original notice [which incorrectly listed a prior conviction as carrying

a maximum term of only six years]. The government correctly points

out that the ACCA does not require notice prior to enhancement.");

United States v. Gibson, 64 F.3d 617, 626 (11th Cir. 1995) (holding

that defendant "received reasonable notice of his prior convictions

and an opportunity to challenge them to satisfy due process" where

"[a]lthough the government listed only one prior conviction in the

indictment . . . the government filed a response to the district court's

standing discovery order prior to sentencing" which "included a print-

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out of [defendant's] prior criminal history and copies of each information and judgment filed in state court relating to three of [defendant's]

prior state convictions"); United States v. Alvarez, 972 F.2d 1000,

1006 (9th Cir. 1992) ("We . . . find no support for the contention that

the predicate felonies must be alleged in some formal notice pleading."). Coleman's due process rights are satisfied if the Government

meets its burden to prove the predicate felonies by a preponderance

of the evidence; McDougherty, 920 F.2d at 575, a fact which Coleman has never challenged. Moreover, Coleman had actual notice of

the predicate offenses relied on by the Government in that his entire

criminal history was set forth in his presentence report and delivered

to him five months before sentencing. Coleman's challenge is without

merit.

Coleman next contends that the district court abused its discretion

in declining to grant a continuance after substituting the store larceny

conviction for the felony possession conviction. Assuming without

deciding that Coleman did not abandon his request for a continuance,

as the Government suggests, we find that there was no error in the

district court's decision to proceed with sentencing despite Coleman's

initial request for a continuance. Without showing both that the district court's denial of a continuance was arbitrary and that it substantially impaired Coleman's opportunity to obtain a fair sentence, this

court will not vacate a sentence because the district court denied the

continuance. See United States v. Speed, 53 F.3d 643, 645 (4th Cir.

1995). Coleman contends that he was prejudiced because the denial

of the continuance deprived him of the opportunity to investigate the

validity of the third felony relied upon by the Government to prove

that Coleman was an armed career criminal. Aside from the fact that

Coleman did not pursue this claim before the district court, Coleman

is not permitted to attempt a collateral attack at sentencing on the

validity of the predicate conviction used for sentencing under

§ 924(e). See Custis v. United States, 511 U.S. 485, 492 (1994).

Because Coleman has not shown substantial impairment of his opportunity to secure a fair sentence, and in the absence of any evidence

that the court's decision was arbitrary, we find no error in the district

court's decision to proceed with sentencing.

Finally, Coleman claims that one of the three offenses that the district court included as predicate offenses for Coleman's armed career

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criminal status was an offense for which he had his civil rights

restored. As a result, contends Coleman, the offense should not have

been included. See 18 U.S.C. § 921(a)(20) (1994); United States v.

Hassan-El, 5 F.3d 726, 733 (4th Cir. 1993). Specifically, Coleman

disputes the district court's conclusion that his arrest within five years

of his release from parole in 1988 on an 1984 voluntary manslaughter

conviction prevented the restoration of his civil rights with respect to

that conviction. Coleman contends that his civil rights were restored

automatically on October 1, 1993, five years after his release from the

voluntary manslaughter conviction. However, one month before that,

Coleman was arrested for possession of cocaine and convicted of that

offense in December of 1993. Although Coleman urges that the operative date should be the date of his conviction, more than five years

after his release, we have held that the operative date is that of the

commission of the next felony. See United States v. Clark, 993 F.2d

402, 405 (4th Cir. 1993). At the time of his arrest, before the five

years had expired, Coleman was in possession of cocaine, a firearm,

and cash. This constitutes the commission of a felony. As a result, the

district court did not err in concluding that Coleman's civil rights had

not been restored for the purposes of § 924(e) with respect to his voluntary manslaughter conviction.

Finding no merit to any of Coleman's assignments of error, we

affirm the conviction and sentence. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

AFFIRMED

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